Originalism Is Useless

Originalism is in ascendance. Both in judicial opinions and in the legal academy, originalist methods of constitutional interpretation are increasingly prominent. This essay nevertheless makes what may seem a claim – originalism is useless. In this, the essay takes a different path the the critics of orignalism have offered to date. Attacks on originalism usually question its normative desirability, but do not doubt that originalism offers a distinct approach to constitutional adjudication as compared to nonoriginalism. The concern here is with the question whether originalism is actually of help in addressing the kind of constitutional questions that come before the courts. It seeks to demonstrate that originalism has failed to develop a method for using the fixed framing-era meaning of constitutional text to reduce the scope of vagueness and ambiguity that gives rise to nonoriginalist adjudication. To the extent that originalism demands that constitutional text be treated as binding, there is no real difference between originalism and nonoriginalism. Nonoriginalists rarely if ever contend the language of the Constitution can be ignored when it is inconsistent with contemporary sensibilities; to the contrary, they readily acknowledge that constitutional text is binding and that constitutional adjudication is properly concerned with interpreting rather than remaking the Constitution’s text. The advocates of a “living Constitution” instead make the more limited claim that contemporary understandings are of use in interpreting the broad, open-ended provisions in the Constitution’s text. For their part, even committed originalists acknowledge that the original meaning of constitutional text is sometimes vague or ambiguous, requiring what they characterize as nonoriginalist construction rather than interpretation on the basis of original meaning. Thus, whatever its theoretical merits, originalism offers a workable and distinctive approach to constitutional adjudication only if it provides a vehicle for utilizing the historically-fixed meaning of constitutional text as a means of reducing the interpretive leeway claimed by the nonoriginalist camp